Personal Injury Brief market insights - December 2021

A summary of key developments including a political landscape roundup, tension over the Northern Ireland protocol, the MoJ consultation on the future of dispute resolution in England and Wales, proposed changes to the Highway Code and the reversal of Vnuk.

Political landscape roundup

Against the backdrop of increasing COVID-19 cases in the UK, the UK’s Medicines & Healthcare Products Regulatory Agency has approved the first oral anti-viral treatment for COVID-19. The UK has now become the first country to approve the use of the tablet which has been authorised for use in people who have mild to moderate COVID-19 and at least one risk factor for developing severe illness. Health and Social Care Secretary Sajid Javid said:

This will be a game changer for the most vulnerable and the immunosuppressed, who will soon be able to receive the ground-breaking treatment.

Meanwhile, at the CBI annual conference, and following the COP26 conference, Prime Minister, Boris Johnson, stressed the importance of the Green Industrial Revolution, outlined by the UK Government in its 10-point strategy to work with businesses. For each objective, Johnson said the government was “producing a roadmap, as well as regulating” to trigger business investment across the country to unite and level up.

Contact: Fiona Hamilton-Wood

Tension over the Northern Ireland protocol – what does this mean for businesses and the insurance market?

In July 2021, Brexit Minister, Lord Frost, published a command paper containing proposals to replace the protocol. The UK Government argues that the protocol is ‘not fit for purpose’ in the long term due to the risk of economic and societal disruption in the UK, to the extent that it would be justified in triggering Article 16 to take unilateral ‘safeguard’ measures.

In response, the EU has said it is prepared to soften some of the controls but that invoking Article 16 would have serious consequences – for both Northern Ireland and for UK-EU relations. However, no agreement has been reached to date.

Despite the myriad of misunderstandings, for many businesses of Northern Ireland, the protocol is seen as an opportunity to continue trade with both the EU and UK, providing Northern Ireland with a unique economic opportunity. The danger though is that the ongoing disagreement will lead to political instability and continuing uncertainty for businesses on both sides of the border – a situation that is compounded by the governance of Northern Ireland being a highly emotive issue.

Contacts: Amanda Wylie and Frances Thompson

Related items:

Kennedys responds to MoJ consultation on the future of dispute resolution in England and Wales

On 3 August 2021, the Ministry of Justice (MoJ) launched a consultation with the aim of seeking to mainstream non-adversarial dispute resolution mechanisms, so that resolving disagreements, proactively and constructively, becomes the norm.

Kennedys has responded, highlighting that technology has the potential to resolve disputes on a more efficient, humanised, simpler and inclusive basis. Our response concludes that any increased use, encouragement or mandated ADR must be in conjunction with three key elements: (i) a commitment to enforcing pre-action protocols (ii) tackling poor behaviours (iii) an obligation for all parties to use and engage with technological solutions, or risk sanctions in the absence of a reasonable refusal.

Contact: Richard West and Fiona Hamilton-Wood

Related item: More needs to be done to encourage the use of technology to facilitate settlement

Proposed changes to the Highway Code: a shift in liability?  

As part of an initiative to ensure that UK roads are being used as safely as possible and to boost cycling and walking across the country, a Department of Transport consultation was launched in July 2020 with a view to amending The Highway Code. On 30 July 2021 the government published the outcome of the consultation, setting out a review of the responses received.

Separately, between 1 and 29 March 2021 Highways England also carried out a consultation, seeking views on proposed changes to The Highway Code “to improve safety for users of motorways and high-speed roads”. The outcome of that consultation was published at the end of June.

We envisage that the proposed changes to The Highway Code could create a shift in the way that courts adjudge liability, particularly when cyclists and motorists are involved.

Contacts: Sophie Anderson and Kris Kane

Related item: Proposed changes to The Highway Code

Government seeks to remove Vnuk from UK legislation

A private member’s Bill has been put forward as part of the UK Government’s intention to remove the Vnuk law – which requires golf buggies, mobility scooters, quad bikes, ride-on lawnmowers and the like to be insured. The Bill awaits the date of the committee stage where a detailed line by line examination will take place.

Transport Secretary, Grant Shapps MP, said in a statement on 29 June 2021 that the government remains committed “to remove the effects” of the Vnuk decision and will bring forward the necessary legislation as soon as parliamentary time allows.

The MP emphasised how the ruling had led to excessive liabilities on the insurance industry and to potential increases in motor insurance premiums.

As such, the government will be following the passage of the Bill with interest.

Contacts: Rachel Moore and Robert Corrigan 

Related item: Vnuk and Green Cards: announcements set out next steps and future changes

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